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Issues with shrink and click wrap Terms not visible to purchaser Acceptance not communicated Are terms of shrink wrap accepted by opening package and loading software on hard disk? Are terms of click wrap accepted by electronic signatures or clicking on an icon or button?

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Issues with shrink and click wrap Does registration card have to be filled up or can communication of acceptance be waived? Unreasonable clauses such as limitation of liability may not be enforced Terms can be implied when sale of goods

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Types of Software Licenses (Contd.) User License Agreements 1. Shrink Wrap Agreements Issues: No meeting of Minds- Users believe they are purchasing the software and not getting a license; Contracts of Adhesion- Unequal Bargaining Power- public policy is against it Validity of Shrink Wrap Agreements- interpreted differently by courts. E.g.: it has been considered valid provided the customer has the opportunity to read-reject terms by returning the product in a reasonable period 2. Click Wrap Agreements No room for negotiating terms. Have been considered valid in PRO CD Inc Case(No. 95-C- 0671-C) and the Beta Computers Case [1996] FSR 367

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Types of Software Licenses - relationships Developer-Publisher License Agreements Developers include clauses on royalty, limited geographical scope, machine types, Publishers specify clauses under which royalty is given as being the milestones achieved for development of each version etc.

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Publisher-Distributor License Agreements Domestic and Foreign Distributor Arrangements in order to maximize profits and market penetration. May also include Original Equipment Manufacturers (OEMS e.g. Toshiba PDA with Palm Inc. software), Value Added Resellers (VARS) Issues: Exclusive Distribution Arrangements may be anti competitive in some jurisdictions as EU. Possibility of Product Liability Cases

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Open source, free and Proprietary Firefox 11.5% (Internet Explorer 85.9%) the open source web browser had 200 million downloads in 2006. Openoffice.org, the open source productivity site was used on desktops by more than 200 million people.

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India Predictions Open source softwares transparent and low cost nature makes it more attractive to countries like India and China. Marten Mickos, CEO of MySQL the fast growing BRIC ( Brazil, China, Russia and India) will be breeding ground of open source in 2007 Governments and BIFS – increasing use 60% of schools in Kerala are using GNU/Linux software.

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Reasons for growth of Linux Vendor Independence Large developer community to fall back on Cross platform interoperability Open nature supports product innovation Advantages and disadvantages

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Growth of Open Source in the US Government US Postal Service used in 1998 more than 900 Linux based systems for recognize destination address. New Jersey State Police in 1998 used Linux based servers and network fileservers. Texass Dallas County uses Linux and Apache web servers to power its website.

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Advantages of open source to government Low price as the procurement process for larger purchases in US governments is cumbersome. IDC Research-1998 : 25% of Federal Computing installations use Linux in their organizations. 16.6% of Large Companies and 12.2% of small companies use Linux.

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Open source Unlike Freeware – not free Source code delivered to licensee Right to modify Must communicate changes Any product based on OS – also OS Effect of Open source – IT patents in India

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Void terms A prohibition to make back up copies A prohibition to study the program or carry out lawful de-compilation Prohibition to obtain information for achieving interoperability. Proprietors get waivers

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License terms Copyright infringement if exceeds scope of grant User – right to use or reproduce for back up or archive – may prohibit modifications or transfers Reproduction House – reproduce for publisher or distributor Distributor – right to distribute by sale lease or license or to display for marketing or training

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Limitations License grant may be restricted to single computer, single network or single site License agreement with governments or corporations may be wider eg all departments or even global Exclusivity of territory may be barred by some laws

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Duration Licenses can be perpetual Presumptions in indian copyright law –Territory – if silent then india –Duration – if silent then 5 years –Exercise of rights – if not exercised for one year, rights revert unless contract provides

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Conclusion The ability to license creates great opportunities for fresh development Software licensed on terms & conditions- breach amounts to infringement Open Source clear alternate to proprietary software- increasing in some sectors( advantages & disadvantages)